EXCLUSIONS
23. The White Paper says that Freedom of Information
"as a fundamental element of our policy to modernise and
open up government, should have very wide application".[36]
The proposals are, it claims, designed to replace the previous
"piecemeal and inadequate system with clear and consistent
requirements which would apply across government".[37]
We have been impressed by the breadth of the White Paper's
commitment to Freedom of Information. But this has made the Government's
decision to exclude certain bodies and classes of information
altogether from the scope of the proposed Act all the more regrettable.
This means that the information will not be accessible at all,
unless it is voluntarily made public or is required under other
statutory provisions; there will be no opportunity to request
the information or to weigh the public interest in its provision
against the public interest in withholding it. The Information
Commissioner will not have access to such information. The proposed
exclusions constitute, the Campaign for Freedom of Information
argue, a "serious weakness" in the proposals. They are,
it says, inconsistent with the White Paper's "stated intention
of ensuring that decisions are based on the contents of the individual
record, and not the class into which it falls".[38]
As we have already pointed out, the exclusions mean that in a
few areas, the degree of access will actually be reduced from
that under the Code of Practice on Access to Government Information.
There are two types of exclusion discussed in the White Paper.
The first consists of classes of information which will be excluded
altogetherfor example information relating to law enforcement.
The other consists of organisations which will be left out of
the scope of the Bill entirely.
"Class" exclusions
24. The most controversial of these exclusions is
information relating to law enforcement. Freedom
of Information, the White Paper says, "should not undermine
the investigation, prosecution or prevention of crime, or the
bringing of civil or criminal proceedings by public bodies".
In particular, it mentions the need to avoid "prejudicing
effective law enforcement, the need to protect witnesses and informers,
the need to maintain the independence of the judicial and prosecution
processes, and the need to preserve the role of the criminal court
as the sole forum for determining guilt". The exclusion will
cover not only the police and prosecuting authorities, but also
other bodies responsible for law enforcementsuch as the
Department of Social Security and the Immigration Service.[39]
25. This exclusion has been criticised by a number
of organisations, and has deeply worrying implications. Miscarriage
of justice cases unresolved because of the difficulty of extracting
information out of the criminal justice system are legion. The
National Consumer Council said, "inaccurate information and
poor practice (malicious prosecutions, assaults in custody) can
do a good deal of damage, and where problems come to light fairly
regularly in ways that suggest they may not be isolated incidents".[40]
In other countries with Freedom of Information regimes, information
relating to law enforcement is not excluded, but is subject to
a normal exemption provision, so that refusals to disclose information
may be tested, either by an Information Commissioner or the courts.
26. There are two further difficulties with this
exclusion. First, the White Paper says that the exclusion will
cover information relating to the investigation and prosecution
functions of "other bodies carrying out law enforcement work",
apart from the police. There are many bodies which carry out law
enforcement work of one sort or another. The Environment Agency,
for example, is heavily involved in enforcing various pieces of
legislation. In this case, Dr Clark told us that "we want
to bring in most of the environmental disclosure which is from
other legislation within the scope of this Bill. We do not see
it as a way of withholding the investigative procedure... we certainly
do not want it to be the case that there is blanket protection
against all the investigatory bodies. That certainly is not the
case".[41] We have
been left in some confusion about the scope of the exclusion and
believe that it needs to be very clear whether it applies to all
the authorities covered by the Act, or only some of them. Law
enforcement is, also, one of the "specified interests"
that may permit exemption from disclosure; there are therefore
two routes protecting information relating to law enforcement.
Will the full exclusion apply to some types of law enforcement
function, and mere exemption to others?
27. Second, the exclusion does not cover the "administrative
functions of the Police and Police Authorities", which are
specifically said to be included in the Act.[42]
We find the distinction between administrative functions and law
enforcement functions a very difficult one to draw. It is reminiscent
of a distinction between "policy" and "operations"
which has proved unsustainable in the past. Will, for example,
policy relating to law enforcement be an "administrative
function" or a law enforcement function? The Guild of Editors
suggest further examples: "information about the number of
police deployed in a particular locality would be of considerable
public interest to those living there, but would it be denied
because it was considered to deal with law enforcement rather
than administration and could reveal that there was an insufficient
police presence? Requests about the number of complaints made
against officers based at a particular police station could be
refused, because it was claimed that it could effect the effectiveness
or morale or public authority of the police from that station
in their dealings with the local community".[43]
28. We asked Mr Jack Straw, the Home Secretary, what
sort of information would be covered by the law enforcement exclusion.
He was asked whether there needed to be protection, for example,
for information relating to the adequacy of policing arrangements
outside a football ground following an incident in the crowd;
to the reasons why the police had failed to respond promptly to
a 999 call; to the excessive use of CS gas in inappropriate circumstances,
or an improper disclosure to an employer of confidential information
by the police in respect of a spent conviction. He argued that
all of these pieces of information required to be kept confidential:
"they all impinge upon the central issue. Questions, for
example, which appear to be prosaic, like the numbers of police
officers who are outside a football ground, go to the strength
of that force in that area" (though Mr Straw appeared to
undermine the point by saying that "the general information
is in any event available about the number of officers in a force
and within a sub-division").[44]
He said that "if you openly provide intelligence about the
total numbers of police officers available, then that would be
used by the criminals involved": this concern appears misplaced
as the information would only be available after the event, not
before it.[45]
29. Mr Straw argued that the exclusion was necessary
because some of the information which he thought had to remain
confidential would have to be disclosed if it was necessary to
prove that disclosure would cause "substantial harm"
in order to withhold it. If it was only necessary to show that
"harm" would arise from disclosurethe "simple
harm" testthe blanket exclusion was not so necessary:
"if you have a simple harm test, then it is possible to have
more things testable in the courts. If you go for a substantial
harm test, then as far as I am concerned the public interest requires
that matters relating to law enforcement, investigations and prosecutions
have to be exempted altogether". The White Paper proposals
already provide for an exemption (in addition to the exclusion)
for information relating to law enforcement. Furthermore, the
requirement that the right of access to information under the
Freedom of Information Bill should not contradict the restrictions
on unauthorised disclosure in the Official Secrets Act (see below,
paras. 77 to 82) limits further in practice the degree to which
information on law enforcement activities is likely to be disclosed.
In effect, this means that such information would not be disclosed
if disclosure could "impede" those activities (as opposed
to cause "substantial harm" to them, as the ordinary
exemption provided under the Freedom of Information Act would
imply). This seems entirely adequate to protect all information
in this class which needs to be protected.
30. The basis of the Home Secretary's argument is
that the relative liberality of subjecting the case against disclosure
of any relevant information to the "substantial harm"
test is in itself an argument for having to exclude totally the
more "sensitive" information. But it would be possible
to provide for this more sensitive information to be subject to
the stricter "simple harm" test. Although it means having
two categories of harm test instead of one, that is in fact no
more complicated than having a substantial harm test and the residual
area of information covered by a blanket exclusion. The advantage
of having the simple harm test applying to the information the
Government now proposes should be excluded altogether is that
the Information Commissioner would have the opportunity to review
individual cases and to adjudicate on them, something he would
not be able to do to "excluded" information. We recommend
that information relating to law enforcement should not be subject
to total exclusion from the Freedom of Information Act. Instead,
we recommend that it should be disclosable, subject to a test
of "harm", rather than of "substantial harm".
This would bring it into line with the existing Code of Practice.
31. Another of the exclusions is of "legal
advice obtained by the government from any source or any
other advice within government which would normally be protected
by legal professional privilege".[46]
The use of "government" (rather than public authorities)
here seems to imply that this exclusion is intended to apply only
to legal advice obtained by central governmentnot to that
obtained by local authorities, or the other public authorities
to which the Act is to apply. If this is true, it is unclear why
it should be important to exclude legal advice obtained by the
Government but not that obtained by other bodies. More broadly,
it is difficult to understand the reason for this exclusion. In
other Freedom of Information regimes, information covered by legal
professional privilege is usually covered by an exemption, and
is therefore subject to review, rather than excluded altogether,
but even this has been much criticised. The Canadian Information
Commissioner has said that a similar protection for legally privileged
documents[47] there is
"unsatisfactory": "most legal opinions, however
stale, general or uncontroversial, are jealously kept secret.
In the spirit of openness, the Government's vast storehouse of
legal opinions on every conceivable subject should be made available
to interested members of the public. Tax dollars are paid for
these opinions and, unless an injury to the conduct of government
affairs could reasonably be said to result from disclosure, legal
opinions should be disclosed".[48]
32. The Campaign for Freedom of Information says
that the rationale of legal professional privilege is to ensure
that clients can seek legal advice in confidence without fear
that their communications with their lawyer may become available
to an opposing party in litigation. Essentially, they say, the
rationale is the same as that for preventing the disclosure of
policy adviceto protect the frankness of such communications.
They propose, therefore, that it be simply subject to a harm testperhaps
a specific exemption relating to an authority's position in litigation.
A harm test would, they argue, protect legal opinions which related
to current or contemplated litigation affecting the authority,
but it would not prevent disclosure where there is no prospect
of litigation"for example where the matters have been
concluded and there is no possibility of related causes following".
We agree. We note that the extent to which legal professional
privilege may be claimed is in any case limited; it cannot, it
has been determined, be successfully claimed for a statutory report
where public interest immunity has not and could not be claimed.[49]
We recommend that information which consists of legal advice
obtained by a public authority, or which would normally be protected
by legal professional privilege, should not be excluded from the
Freedom of Information Act. Instead, it might be protected by
being listed as a separate "specified interest" which
could justify exemption, with the presumption that any disclosure
of a document that was legally privileged would cause "substantial
harm" to the integrity of the relationship between lawyer
and client, and therefore such documents would be withheld.
33. The White Paper says that personnel records
of public authorities need to be excluded from the Act because
"Allowing civil servants and other public sector employees
a right of access to their personnel files under the FOI Act would,
among other things, result in public and private sector employees
having different statutory rights".[50]
Both public and private sector employees already have access to
their employment records held on computer under the Data Protection
Act, and will receive, under the new Data Protection Bill, access
to certain "manual" files as well. The Campaign for
Freedom of Information argues that both public and private sector
employees should be able to gain access to manual personnel records
to a greater degree than will be provided for in the Data Protection
Bill. In lieu of that, it suggests that the Freedom of Information
Act should permit public sector employees to see their personnel
files, even if a similar right is not yet available in the private
sector.[51] For the Association
of First Division Civil Servants (FDA), the Government on this
point is going for the "lowest common denominator",
"rather than seeking means if required to enhance the rights
of private sector employees".[52]
34. In this respect the proposals in the White Paper
are more restrictive than overseas Freedom of Information legislation,
which is often heavily used for gaining access to personnel records.
It remains unclear to what extent the Data Protection Bill will
provide individuals with access to their personnel records. It
appears at present that the Data Protection Bill and the Directive
on which it is based are likely to be interpreted quite widely,
and therefore it may be that the attempt to restrict access under
the Freedom of Information Act will be rendered pointless by the
Data Protection Act. Clause 1 of the Bill defines "data"
as information which "(a) is being processed by means of
equipment operating automatically in response to instructions
given for that purpose; (b) is recorded with the intention that
it should be processed by means of such equipment, or (c) is recorded
as part of a relevant filing system or with the intention that
it should form part of a relevant filing system". "Relevant
filing system" is defined as "any set of information
relating to individuals to the extent that, although the information
is not processed by means of equipment operating automatically
in response to instructions given for that purpose, the set is
structured, either by reference to individuals or by reference
to criteria relating to individuals, in such a way that particular
information relating to a particular individual is readily accessible".
35. The definition, Lord Williams said in the House
of Lords, is "our best effort so far"; it contains three
key elements: "one, the set of information must be structured;
two, the structuring must be done by reference to individuals;
and, three, particular information about particular individuals
must be readily accessible. There is no doubt that that can be
criticised as lacking certainty. It does not make it absolutely
clear as to whether all personnel files will be covered, but the
answer is that it depends on the way in which the files are structured
and upon the ease of access to particular information. To give
an example: a personnel file about a named individual which contains
a miscellaneous set of papers filed in date order may not be caught.
A personnel file about a named individual with nothing in it but
annual staff reports may well be".[53]
The Data Protection Registrar takes a rather different view about
the extent of the files covered, however: the definition would
cover "any manual record which is filed by reference to [an]
individual, either his NI number or his name and where it is clear
that every paper on that file relates to that individual".[54]
In any case, there seems no particular reason why rights of access
in the public and private sector should not be different and we
believe that it is perfectly reasonable for them to be different.
We recommend that personnel information should not be excluded
from the Freedom of Information Act and that the Government should
clarify the implications of the Data Protection Bill on the right
of access to personnel records under Freedom of Information.
36. The insulation of certain functions from the
right of access to information is, we believe, open to abuse.
A very great number of bodies may hold some information which
is covered by the Act, as well as some which is not. Where will
the boundary lie? Could a public authority succeed in avoiding
almost any exposure of its information by claiming thatfor
one reason or anotherit all came under the (for example)
law enforcement exclusion? In these circumstances, it would make
it difficult for the Information Commissioner to challenge the
exclusion, and force the body to justify non-disclosure. The White
Paper says that the Commissioner will "not have any locus
where the information concerned is not covered by the Act".[55]
It is not clear to what extent it will be possible to challenge
a claim of exclusion in the courts. As we have said above, we
would prefer that there should not be any exclusions from the
proposed Act; but we recommend that if any particular functions
are to be excluded from the right of access, there should be a
right of appeal to the Information Commissioner concerning whether
the exclusion had been correctly claimed; the Information Commissioner
should have the right of access to any records required in order
to decide this question; and the exclusion should subsequently
be testable through the courts.[56]
Exclusions: Parliament and the
Security Services
37. We have not taken evidence on the exclusion of
Parliament, which we expect to be the province of the Joint Committee
on Parliamentary Privilege. We have, though, been somewhat surprised
that it should be excluded. To the extent that Parliament's proceedings
already take place in public, of course, the exclusion does not
matter. The Government's background paper explains that inclusion
might be taken to be "an implied repeal of the Bill of Rights
which declares 'that the freedom of speech and debates or proceedings
in Parliament ought not to be impeached or questioned in any court
or place out of Parliament'".[57]
Proceedings of many Committees take place in private, and the
privacy of these would need to be respected. However, the proposed
exemption for the integrity of decision-making is likely to protect
these discussions. The papers held by individual Members, parties
and their Committees, do not relate to Parliament's public functions,
and would therefore not, presumably, be covered by the Act, just
as the political and constituency papers of government Ministers
held in government departments will not be disclosable.[58]
Papers sent by Members to Ministers and departments may well,
however, be covered under the Act in any case. But there are many
administrative functions carried out within Parliament which,
it seems to us, do not need to be protected, any more than do
those of the police. The justification for the exclusion of
Parliament has not been made out. The exclusion may well convey
the wrong impression to the general public, given the purpose
of this legislation. We hope that the Joint Committee on Parliamentary
Privilege will review this question, and we recommend that the
Government re-examine the exclusion of Parliament in the light
of its Report.
38. The other exclusion of this type is of the security
and intelligence services: the Security Service, the Secret Intelligence
Service, the Government Communications Headquarters and the Special
Forces (SAS and SBS). The White Paper says that these organisations
"could not carry out their duties effectively in the interests
of the nation if their operations and activities were subject
to freedom of information legislation".[59]
In other Freedom of Information regimes such bodies are not always
excluded. In the USA, Canada and New Zealand they are covered
by Freedom of Information, but subject to the appropriate exemptions,
not a blanket exclusion.[60]
In the UK these bodies are not excluded from the Data Protection
Act, although they have claimed an exemption from its requirements
on grounds of national security under section 27. The Data Protection
Registrar has argued, however, that they should not be exempt
when dealing with matters that do not involve national security.
The Campaign for Freedom of Information argued that the fact that
the Security and Intelligence Services have become involved in
more traditional types of police work strengthens the case for
them to be covered. The Ombudsman has successfully claimed a right
of access to security service files for his investigations (although
the security services themselves are not within his jurisdiction).[61]
The Home Secretary argued that "given the nature of the business
in the Security Service, I do not believe that any part of what
they do could come within the framework of the Freedom of Information
regime ... if there were a breach in the exemption, that could
undermine its operational effectiveness".[62]
39. We accept that almost all information relating
to the Security and Intelligence Services would need to be withheld.
Does this mean that they need to be excluded from the Act altogether?
Exclusion prevents any external view being taken on whether there
might be some cases in which the public interest would override
the requirement of secrecy. There may be cases of miscarriage
of justice or abuse of power, for example, which would never come
to light except through the exercise of the public interest test.
On the other hand, if the Services are not excluded, they may
be subject to a large number of requests for information all,
or almost all, of which will need to be considered; but all, or
almost all, of which are almost certain to be turned down. Is
there any point in wasting effort and resources in this way? We
believe, however, that there is an important point of principle
at stake, and that the work of the security services should, ultimately,
be subject to a test of whether it is in the public interest that
certain information is withheld. Therefore we recommend that
the Security and Intelligence Services should not be excluded
from the Freedom of Information Act.
36 para. 2.1. Back
37 para.
1.6. Back
38 Unprinted
evidence (Campaign for Freedom of Information submission to the
Cabinet Office). Back
39 para.
2.21. Back
40 Unprinted
evidence (National Consumer Council submission to the Cabinet
Office). Back
41 Q.92. Back
42 para.
2.2. Back
43 Unprinted
evidence (Guild of Editors' submission to the Cabinet Office). Back
44 Q.510. Back
45 QQ.
510, 511. Back
46 para.
2.22. Back
47 Under
Section 23 of the Canadian Act, this information is protected
by a discretionary exemption. Back
48 Annual
Report of the Canadian Information Commissioner, 1993-94, p.30,
quoted in Min of Ev. p.31. Back
49 Re.
Barings plc [1998] 1 All ER 673. Back
50 para.
2.20. Back
51 Min
of Ev. p.31. Back
52 Unprinted
evidence (FDA submission to the Cabinet Office). Back
53 HL
Deb (1997-98) 586, cwh 12. Back
54 Q.220. Back
55 para.
5.10. Back
56 Although
personal data are exempt from the provisions of the Data Protection
Act if a Minister signs a certificate saying that it needs to
be exempt on national security grounds, it is possible to appeal
to the Data Protection Tribunal against the certificate, and the
Tribunal can quash the certificate if it decides that, "applying
the principles applied by the court on an application for judicial
review, the Minister did not have reasonable grounds for issuing
the certificate". Back
57 para.
23. Back
58 See
para. 2.16. Back
59 para.
2.3. Back
60 Min
of Ev. p.31. Back
61 Ninth
Report of the Parliamentary Commissioner for Administration, Session
1994-95, Selected Cases 1995, Volume 4, Case A11/95. Back
62 Q.528. Back
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